I promised the PBA Solo and Small Firm Section that I would address specific issues related to managing employees when working from home. I reached out to ask people what they wanted to know about, and there were a lot of questions. Given this, I have decided to break it up into pieces. The number one issue of concern is how do lawyers make sure that client confidentiality is protected when they and/or their staff are working from home.
I have to tell you, as an ethics lawyer it does my heart good that this is the main question people are asking me. Protecting client data really is the key concern these days, no matter whether we are working in an office, at home, or in some other location.
Confidentiality is a huge issue, so I am going to break this up into several posts. This first post will address some broad concepts.
Is Data Protection a Serious Issue?
Ok, this is really a rhetorical question. Of course, data protection is a serious issue. As lawyers, we are obligated under both the ethics rules and (potentially) various laws to protect our clients’ data. Failure to do so can give rise to ethics violations, legal violations, malpractice complaints, and a public relations nightmare. In fact, not only is this an issue every lawyer should explore, it is an issue lawyers should explore with their clients.
Make Sure You Address Data Security with Your Clients
If you are a business lawyer and your clients have moved to home offices, you should discuss their legal obligations with them, and you should send them to technology experts if they need help. If you are a family law attorney, and you have spouses who are in the same house but going through a divorce, you should speak with them about how they can secure their data from the other spouse. Confidentiality is an area that matters in every practice area so don’t forget to discuss it with your clients. It is an area to mine for billable business at a time when lawyers need business. Confidentiality, security, and privacy are all legitimate and critical areas to address.
Discuss Security with Your Staff
If you have staff working from home, you need to have a very plain conversation with them about security and confidentiality. Over the years, I have been surprised by the number of law firms that have failed to explain that attorney ethical obligations are also staff ethical obligations. I have heard a surprising number of paralegals and legal assistants say that they are not obligated to keep client confidences because they are not lawyers. It is true that staff are not obligated to keep client confidences for the same reason as lawyers, but lawyers should explain that they are obligated to keep client confidences as part of their job requirements.
Pennsylvania Ethics Rules – Supervising
It is critical to understand that under Pennsylvania Ethics Rules 5.1, 5.2, and 5.3 lawyers must supervise subordinate attorneys, their staff, and outside consultants. Failure to make sure that these individuals follow our ethics rules can cause lawyers to be brought up on ethics charges. Educate your subordinate lawyers and staff. Make them understand that if they fail to keep client confidentiality that is grounds for termination. Education your consultants and make certain that your contracts address their obligation to follow attorney ethics rules as far as confidentiality, as well as any laws that are implicated by any data they access.
Every jurisdiction has rules surrounding ethics and confidentiality, as well as the obligation to properly supervise lawyers, staff, and consultants. Please check your state’s rules to make certain you understand and follow them.
Pennsylvania Ethics Rules for Non-Lawyers
This is a Powerpoint Presentation I used to discuss ethics rules to a group of non-lawyers. This is not a comprehensive review of the rules, but it is something you may share with your staff to help them understand the rules.
Set Everyone Up for Success
Unfortunately, rushing to set up a home office is far from ideal. The reality though is that many attorneys are forced into exactly that position right now. In addition to having to rush, they may not have access to tech support to help them set up their offices. This is unfortunate because if a lawyer has not yet set up a home office, chances are somewhat good they are not technologically savvy. The very last people who should be forced to rush and set up a home office by themselves are the people who have resisted doing so or who have been unable to do so. However, we must deal with the reality of the situation we are in and work from there.
Discovering Simple Tools
My prior blog posts on tools and starting your home office provide simple solutions (as simple as I can offer) to move your office into your home. The same steps I suggest for the attorney home office are good for the staff member’s home office. You will find other advice throughout this blog on technology, and I will continue to write more posts as we work together to get through this Covid-19 pandemic. Keep in mind, older posts might be out-of-date. If you have questions, contact me through my contact form and I will do my best to answer them. I recognize that what I consider simple, someone else might not.
The first step to having your employees work from home is a conversation. You need to be very clear with your employees about your ethical obligations and legal obligations for confidentiality and that your obligations are there obligations.
You should create written policies that you explain to your employees and have them sign. Those policies should state, as plainly as possible, your expectations and the penalties if they fail to meet them.
As I continue in this series of posts on confidentiality, I will provide you with technology and will also recommend some language. Hopefully, this will help guide you and make you feel more secure. In the end, though, the buck stops with the managing partner of the law firm. If you are the only attorney, obviously, the buck stops with you.